Neuhoff v. Eagle County

23CA0902 Neuhoff v Eagle County 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0902

Board of Assessment Appeals Nos. 68920 & 68966

Joe B. Neuhoff Family Partnership, Ltd.,

Petitioner-Appellee,

v.

Eagle County Board of Equalization; and Eagle County Board of

Commissioners,

Respondents-Appellants,

and

Board of Assessment Appeals,

Appellee.

ORDER AFFIRMED

Division I

Opinion by JUDGE SCHOCK

Welling and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

GPS Legal Solutions, Jennifer Gilbert, Denver, Colorado, for Petitioner-Appellee

Bryan R. Treu, County Attorney, Christina Hooper, Deputy County Attorney,

Lane Sheldon, Assistant County Attorney, Eagle, Colorado, for Respondents-

Appellants

Philip J. Weiser, Attorney General, John August Lizza, First Assistant Attorney

General, Krista Maher, Senior Assistant Attorney General, Evan P. Brennan,

Assistant Attorney General, Denver, Colorado, for Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 The Eagle County Board of Equalization and Eagle County

Board of County Commissioners (collectively, the County) appeal an

order of the Board of Assessment Appeals (BAA) reclassifying two

parcels of land owned by the Joe B. Neuhoff Family Partnership,

Ltd. (the Partnership) as residential for tax purposes. We affirm.

I. Background

¶ 2 The Partnership owns three parcels of land in Eagle County.

One parcel has a single-family residence on it (the residential

parcel). The other two (the subject parcels) are contiguous with the

first and are undeveloped. For years, the residential parcel was

classified for tax purposes as “residential land” and taxed at the

residential assessment rate, while the subject parcels were

classified as “vacant land” and taxed at a substantially higher rate.

¶ 3 In 2016, the Partnership filed petitions for an abatement or

refund of taxes for the three preceding tax years and an appeal of

the tax assessment for 2016, asserting that the subject parcels

should have been classified as residential land. The County denied

the petitions and declined to reclassify the subject parcels.

2

A. BAA Appeal

¶ 4 The Partnership appealed the County’s decisions to the BAA.

The County stipulated to two of the three elements of the definition

of “residential land”: the subject parcels were contiguous with, and

under common ownership with, the residential parcel. The parties’

dispute centered on the third element: whether the subject parcels

were “used as a unit in conjunction with the residential

improvements.” § 39-1-102(14.4)(a), C.R.S. 2016.

1

The Partnership

argued they were, asserting that “passive uses such as view

protection, buffering, and privacy” were sufficient. The County

argued they were not, distinguishing “actual use” from “subjective

enjoyment . . . of the general benefits of property ownership.”

¶ 5 The BAA held a hearing on the appeals. At the hearing,

Lawrence Neuhoff testified on behalf of the Partnership that his

family purchased the subject parcels primarily to preserve the rural

setting surrounding the residence. He testified that the family used

the subject parcels “primarily to enjoy the views” of the countryside

from the residence. He explained that the family spent “a lot of

1

This statute has since been amended. We apply the version of the

statute in effect at the time of the challenged classifications.

3

time” on the back patio and deck “looking at the wildlife and, in

particular, the elk” crossing the subject parcels. Neuhoff also

testified that the family used the subject parcels for recreational

activities, including walking, hiking, sledding, and playing baseball.

¶ 6 The BAA also heard testimony from an appraiser at the Eagle

County Assessor’s Office who had visited the subject parcels. The

appraiser testified that he did not see any physical indication of

use, such as hiking trails, planted trees, fencing, or “evidence of

some kind of purpose of [the subject parcels] for the support” of the

residence. He explained that the subject parcels “looked like an

unimproved vacant lot . . . with the natural foliage.” The appraiser

also testified that development of the subject parcels would not

have any significant impact on the views from the residence.

¶ 7 The BAA issued two separate, but virtually identical, orders —

one for 2013 to 2015 and one for 2016 — denying the appeals and

upholding the “vacant land” classification (BAA Order I). The BAA

explained that it was “not convinced” by the Partnership’s claimed

uses of the subject parcels and was “persuaded” by the county

appraiser’s testimony that he “did not observe any evidence of use.”

The BAA found that, if the subject parcels were developed, “views

4

from [the residence] would not be negatively impacted” and “wildlife

viewing from the residential lot would not be diminished.”

¶ 8 The BAA also found that Neuhoff’s testimony about past use of

the subject parcels for sledding, baseball, and wildlife viewing was

“not compelling.” It found that “these uses of the subject lots [were]

minimal at best” and “question[ed] whether these uses occurred on

the subject lots at all as opposed to the residential lot or the open

space.” It was “not convinced” that the claimed uses made the

subject parcels “an integral part of the residence.” Based on these

findings, the BAA concluded that the subject parcels were not used

“as a unit in conjunction with the residential improvements.”

B. Neuhoff I

¶ 9 The Partnership appealed the BAA’s orders. See Joe B.

Neuhoff Fam. P’ship, Ltd. v. Bd. of Cnty. Comm’rs, (Colo. App. No.

17CA0762, Dec. 13, 2018) (not published pursuant to C.A.R. 35(e))

(Neuhoff I). It argued that (1) the BAA misconstrued the statutory

phrase “used as a unit” to require visible evidence of use; (2) the

BAA erroneously relied on the likelihood of future conveyance of the

parcels as a unit; and (3) certain of the BAA findings — concerning

use of the subject parcels for view preservation and privacy — were

5

not supported by the record. Id. at ¶ 21. The Partnership did not

challenge the BAA’s findings as to the use of the subject parcels for

wildlife viewing and recreational activities. Id. at ¶ 23 n.3.

¶ 10 A division of this court affirmed. Noting a division split as to

the definition of the term “use,” the division held that the BAA

properly interpreted section 39-1-102(14.4)(a) to require “evidence

of integral, not merely incidental, use.” Id. at ¶¶ 27-28. Although

the division agreed with the Partnership that the BAA improperly

considered the likelihood of the parcels’ future separate

conveyances, it concluded that the BAA’s findings that the subject

parcels were not “used” for view preservation or privacy were

sufficient to sustain the orders. Id. at ¶¶ 37-38. It further

concluded that those findings had record support, given the other

development in the area and evidence that development of the

subject parcels would not block views and would impact privacy

only “[t]o a certain extent.” Id. at ¶¶ 42-45.

¶ 11 The Partnership filed a petition for writ of certiorari, which the

supreme court held in abeyance pending its resolution of four

similar pending cases.

6

C. Mook v. Board of County Commissioners

¶ 12 The supreme court consolidated three of those cases and

decided them in a single opinion addressing the definition of

“residential land” under section 39-1-102(14.4)(a).

2

See Mook v. Bd.

of Cnty. Comm’rs, 2020 CO 12. As relevant to this case, the court

held that land is “used as a unit” with residential land if the

landowner uses “multiple parcels of land together as a collective

unit of residential property.” Id. at ¶ 77. The landowner must

“employ the subject property as a constituent part of a larger

whole,” treating the parcels as a single residential unit. Id. at ¶ 51.

¶ 13 In adopting this standard, the court rejected several proposed

limitations. First, a subject parcel need not be “necessary” or

“essential” to the use of a contiguous residential parcel. Id. at ¶ 52.

Second, it is immaterial whether the parcels would likely be

conveyed as a unit in the future. Id. at ¶ 55. All that matters is

how the owner presently uses the land. Id. Third, “use” is not

limited to “active” uses, but may include “passive” uses like walking

a dog, viewing nature, or maintaining privacy. Id. at ¶¶ 57, 66, 68.

2

A separate opinion was issued in the fourth case the same day.

See Ziegler v. Park Cnty. Bd. of Cnty. Comm’rs, 2020 CO 13.

7

Fourth, a subject parcel does not need to contain a residential

improvement. Id. at ¶ 59. It is sufficient if there are residential

improvements on the “collective unit” of property. Id. at ¶ 60.

D. Neuhoff II

¶ 14 Based on Mook, the supreme court granted the petition for

writ of certiorari in Neuhoff I, vacated the judgment, and remanded

the case to this court for reconsideration in light of Mook. See Joe

B. Neuhoff Fam. P’ship, Ltd. v. Bd. of Assessment Appeals, (Colo. No.

19SC54, Mar. 16, 2020) (unpublished order).

¶ 15 On remand, the division reversed the BAA’s orders and

remanded the case to the BAA for further proceedings. See Joe B.

Neuhoff Fam. P’ship, Ltd. v. Bd. of Cnty. Comm’rs, slip op. at ¶¶ 5,

18 (Colo. App. No. 17CA0762, Oct. 1, 2020) (not published

pursuant to C.A.R. 35(e)) (Neuhoff II). It explained that Mook had

clarified the legal standard for the “used as a unit” requirement

contrary to the holdings of earlier cases. Id. at ¶¶ 10-11. The

division further concluded that some of the rationales underlying

the Neuhoff I decision were no longer valid under Mook. Id. at ¶ 15.

¶ 16 The division therefore remanded the case to the BAA to

reconsider its orders under the legal standard announced in Mook.

8

Id. at ¶ 16. It declined to address the other issues addressed in

Neuhoff I — including the challenges to the BAA’s factual findings —

because those issues “may not arise again, depending on the BAA’s

reassessment of the ‘used as a unit’ requirement.” Id. at ¶ 17. The

division authorized the BAA, “[i]n its discretion,” to “order such

additional argument or evidence as it deems necessary.” Id.

E. BAA Order II

¶ 17 For more than two years after Neuhoff II, the case sat dormant,

with neither the parties nor the BAA taking any action. Eventually,

the County moved to dismiss for failure to prosecute. The BAA

denied the motion and set the matter for a hearing. Two months

later, it vacated the hearing and indicated it would decide the case

based on the record of the prior proceedings. The BAA then issued

an order (BAA Order II) reversing its prior decision and concluding

that in light of Mook and Neuhoff II, the subject parcels must be

classified as residential land for the relevant tax years.

¶ 18 After recounting the general nature of the testimony of Neuhoff

and the county appraiser, the BAA concluded:

[U]nder the plain language of the statute and

the decision in Mook, the subject parcels are

used as a unit with the residential parcel

9

because they are used for viewing nature and

wildlife from the residence. The Mook Court

explicitly cited “viewing nature” as a type of

use that can satisfy the “used as a unit”

requirement. [Citation omitted.] There was no

dispute that “viewing nature” from the

residence was a use of the subject parcels.

Furthermore, the Colorado Supreme Court

explained that the statute “directs assessors to

classify property as residential land according

to how the owner presently uses the land,” not

as an asset which could be sold in the future.

¶ 19 The County moved to reconsider, arguing that the BAA had

misstated or disregarded its prior findings of fact, made new

findings of fact that were contrary to the record, and misapplied the

relevant legal standard. The BAA did not rule on the motion.

II. Analysis

¶ 20 The County challenges BAA Order II on three grounds. First,

it argues that the BAA abused its discretion by making factual

findings that conflicted with its factual findings in BAA Order I.

Second, it contends that those inconsistent factual findings violated

the mandate rule because the prior factual findings were upheld on

appeal in Neuhoff I. Third, it asserts that the BAA misapplied the

Mook test. We address and reject each argument in turn.

10

A. Applicable Law and Standard of Review

¶ 21 Under Colorado law, residential real property is assessed at a

lower rate for tax purposes than other real property. See Mook,

¶¶ 25-27; Colo. Const. art. X, § 3(1)(b) (amended 2020). Residential

real property includes both “residential land” and “residential

improvements.” § 39-1-102(14.5). For the tax years at issue,

“residential land” means “a parcel or contiguous parcels of land

under common ownership upon which residential improvements

are located and that is used as a unit in conjunction with the

residential improvements located thereon.” § 39-1-102(14.4)(a).

¶ 22 As applied to unimproved parcels of land, this definition has

three elements. To qualify as residential land, unimproved parcels

must be (1) contiguous with residential land; (2) used as a unit with

residential land; and (3) under common ownership with residential

land. Mook, ¶ 28. Only the second element is at issue in this case.

¶ 23 The appropriate classification of land for property tax

purposes is a mixed question of fact and law. Sandra K. Morrison

Tr. v. Bd. of Cnty. Comm’rs, 2020 COA 74, ¶ 8. The evaluation of

witness credibility, weighing of the evidence, and resolution of

factual conflicts are all matters within the exclusive province of the

11

BAA as fact finder. Id. at ¶ 9. We must accept the BAA’s factual

findings unless they are clearly erroneous, meaning they have no

support in the record. Rare Air Ltd., LLC v. Prop. Tax Adm’r, 2019

COA 134, ¶ 14. We review de novo whether the BAA’s decision

comports with the statutory scheme. Id. at ¶ 15.

¶ 24 We will set aside a BAA order only if it constitutes an abuse of

discretion or was arbitrary and capricious, based on clearly

erroneous findings of fact, unsupported by substantial evidence, or

otherwise contrary to law. Sandra K. Morrison Tr., ¶ 10.

Conversely, we will uphold the BAA’s property classification if it has

a reasonable basis in law and is supported by substantial evidence.

O’Neil v. Conejos Cnty. Bd. of Comm’rs, 2017 COA 30, ¶ 11.

B. Inconsistent Factual Findings

¶ 25 The County first contends that the BAA abused its discretion

by making factual findings in BAA Order II that were inconsistent

with its factual findings and credibility determinations in BAA

Order I. Specifically, the County argues that the BAA’s finding that

the subject parcels are used for viewing nature and wildlife from the

residence contradicts its prior rejection of these uses. We disagree.

12

¶ 26 In BAA Order I, the BAA applied a narrower construction of

the “used as a unit” requirement than the one later announced in

Mook — one that required the subject parcels to be used as “an

integral part” of the residence. See Mook, ¶ 52; Rust v. Bd. of Cnty.

Comm’rs, 2018 COA 72, ¶10 (“[M]ore than occasional use and peace

and serenity are required to classify an adjacent, undeveloped lot as

residential.”), cert. granted, judgment vacated, and case remanded,

No. 18SC438, 2020 WL 1257466 (Colo. Mar. 16, 2020)

(unpublished order); Twilight Ridge, LLC v. Bd. of Cnty. Comm’rs,

2018 COA 108, ¶ 24 (“It is well within the BAA’s discretion to

determine that use of vacant land to look at wildlife or enjoy views

is not the type of integral use that establishes that vacant land is

being used as a unit with a contiguous residential parcel.”), cert.

granted, judgment vacated, and case remanded, No. 18SC622, 2020

WL 1258514 (Colo. Mar. 16, 2020) (unpublished order).

¶ 27 It was in that legal context that the BAA found in BAA Order I

that the subject parcels were not “used as a unit in conjunction

with the residential improvements for the enjoyment or preservation

of views” and that Neuhoff’s testimony about using the subject

parcels for wildlife viewing, among other things, was “not

13

compelling.” In making those findings, the BAA relied on several

factors that Mook made clear are not controlling, including that

(1) the scenic views and wildlife viewing would not be negatively

impacted by development of the subject parcels; (2) the use of the

subject parcels for wildlife viewing was minimal; (3) there was no

physical evidence of use occurring on the subject parcels; and

(4) the claimed uses did not make the subject parcels “an integral

part of the residence.” See Mook, ¶¶ 52, 55, 57, 60, 66. In other

words, the claimed uses of the subject parcels did not rise to the

level of “used as a unit” under the then-prevailing legal standard.

¶ 28 But the BAA did not say in BAA Order I that the Neuhoff family

did not view nature and wildlife from the residence. To the

contrary, its finding that “wildlife viewing from the residential lot

would not be diminished” in the event of development necessarily

indicated that the family did view wildlife from the residence. So

too for its suggestion that the claimed uses might have occurred on

the residential lot, as opposed to on the subject lots. Thus, there

was no conflict in the BAA’s factual findings in BAA Order I and

BAA Order II. It was just that something more was required under

14

the legal standard the BAA applied in deciding BAA Order I. That

“something more” is what the BAA found “not compelling.”

¶ 29 We acknowledge that, viewed in a vacuum, some of the BAA’s

statements could be read to suggest that the subject parcels were

not used for viewing nature and wildlife. But a closer look at those

statements, particularly in conjunction with the then-prevailing

legal standard, indicates otherwise. For example, while the BAA

said in BAA Order I that it did not “believe that the subject lots were

used as a unit in conjunction with the residential improvements for

the enjoyment or preservation of views,” that conclusion was based

on its finding that the views would remain if the subject parcels

were developed. In other words, the BAA’s “disbelief” was not with

whether the Neuhoff family enjoyed views from the residence, but

with whether the subject parcels were necessary to preserve those

views. Similarly, the BAA “seriously question[ed]” whether wildlife

viewing (and other claimed uses) “occurred on the subject lots at

all.” But it did not question whether the subject parcels were used

to view wildlife from the residence, as it later found in BAA Order II.

¶ 30 Moreover, even if the BAA’s factual findings in the two orders

were inconsistent, nothing precluded the BAA from reconsidering

15

its own factual findings, particularly in light of the newly refined

legal standard and the remand from this court. See Owners Ins. Co.

v. Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 28 (“A trial court

remains free to reconsider its own factual findings later in the case,

as long as doing so is consistent with the mandate.”); S. Cross

Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019 COA 58, ¶ 40. Unlike

in Southern Cross Ranches, there was no question why the BAA

changed its ruling: the supreme court had clarified the legal

standard in a way that undermined some of the BAA’s rationales,

and the court of appeals had remanded the case for reconsideration

as a result. See Neuhoff II, ¶¶ 15-16; cf. S. Cross Ranches, ¶ 46

(holding that trial court abused its discretion in issuing inconsistent

rulings when “the second order did not mention the first order,

much less give any reason for reaching the opposite result”).

¶ 31 The County seeks to distinguish Owners Insurance on the

ground that, in that case, the remand court held a new evidentiary

hearing before reversing its prior ruling. See Owners Ins. Co.,

¶¶ 12-14. But the new evidentiary hearing was not a prerequisite

to the new findings in Owners Insurance. Rather, as in this case,

the division noted that “the remand court had discretion to decide

16

whether another evidentiary hearing was warranted.” Id. at ¶ 27.

Whether or not it did so, it was required to reassess the facts in

light of the newly articulated legal standard. Id. Similarly, the

supreme court’s articulation of the correct “used as a unit”

standard in Mook “necessarily affected all the issues going to” the

Partnership’s use of the subject parcels — thus permitting the BAA

to reassess its factual findings under that new standard. Id.

¶ 32 The County also takes issue with the BAA’s statement that

“[t]here was no dispute that ‘viewing nature’ from the residence was

a use of the subject parcels.” But there was no dispute that the

Neuhoff family viewed nature from the residence.

3

Neuhoff testified

that the family spent “a lot of time” on the back patio and deck

“enjoy[ing] the views off the subject parcels” and “looking at the

wildlife.” He testified that an elk path crossed one of the subject

parcels and the family awoke early to watch the elk. The County

presented no evidence — or even argument — to dispute this point.

It disputed only (1) the extent to which the family was physically on

3

As we explain above, this finding is not inconsistent with the

BAA’s skepticism in BAA Order I as to whether wildlife viewing

occurred “on the subject lots.”

17

the subject parcels and (2) whether the views from the residence

met the standard of “used as a unit” when those views would not be

negatively impacted by development of the subject parcels.

¶ 33 Nor did the BAA find Neuhoff incredible on this limited point

in BAA Order I. Indeed, as noted above, by finding that the views of

nature and wildlife from the residence would not be diminished by

development, the BAA seemed to accept Neuhoff’s testimony that

the family did view nature and wildlife from the residence. To the

extent the BAA found certain of Neuhoff’s testimony “not

compelling,” it appears to have been referring to testimony about

claimed uses beyond the views from the residence — perhaps

because Neuhoff was reaching to satisfy a heightened standard.

¶ 34 Thus, the BAA did not abuse its discretion by finding that the

subject parcels are used for viewing nature and wildlife from the

residence after previously concluding that they were not “used as a

unit in conjunction” with the residence for these purposes.

Because the record supports this finding, we may not disturb it.

See Rare Air, Ltd., ¶ 14.

18

C. Mandate Rule

¶ 35 We also reject the County’s argument that the BAA’s finding in

BAA Order II that the subject parcels are used for viewing nature

and wildlife from the residence violates the mandate rule.

4

¶ 36 The law of the case doctrine contains two branches: one for

the court’s own rulings and one for the rulings of a higher court.

Owners Ins., ¶ 22. The first branch, called the “law of the case,”

refers to courts’ discretionary practice of generally declining to

reopen what has already been decided. Id. at ¶ 23. The doctrine

does not apply to factual questions and does not “prevent a court

from revisiting its own prior rulings, particularly where those

rulings are no longer sound due to changed conditions of law.” Id.

4

The Partnership and the BAA assert that the County did not

preserve this argument because it did not raise it before the BAA.

But the County did not have an opportunity to raise this (or its

other two arguments) before BAA Order II because the BAA sua

sponte vacated the hearing and issued the order ten days later. See

C.R.C.P. 46 (“[I]f a party has no opportunity to object to a ruling or

order at the time it is made, the absence of an objection does not

thereafter prejudice him.”). And although the County’s motion to

reconsider did not expressly refer to law of the case, it effectively

asserted the same argument the County makes on appeal by

arguing that the BAA was bound by its factual findings in BAA

Order I, in part because those findings had not been disturbed on

appeal. We therefore deem this argument sufficiently preserved.

19

¶ 37 The second branch of the law of the case is the mandate rule.

Id. at ¶ 24. Under this rule, “a lower [tribunal] must follow the law

of the case as laid out by an appellate tribunal.” Thompson v. Catlin

Ins. Co. (UK) Ltd., 2018 CO 95, ¶ 21. That includes the appellate

court’s “[c]onclusions . . . on issues presented to it as well as

rulings logically necessary to sustain such conclusions.” Owners

Ins., ¶ 24 (citation omitted). We review de novo whether a tribunal

violated an appellate mandate. Thompson, ¶ 22.

¶ 38 We conclude that the BAA complied with the mandate, as

expressed in Neuhoff II. The division mandated that the BAA

reconsider BAA Order I, with or without additional argument or

evidence, in light of the legal standard articulated in Mook and

Neuhoff II. Neuhoff II, ¶ 16. The BAA did that, stating that, in

conducting its analysis, it “relie[d] on the applicable law recited” in

Neuhoff II, and summarizing the legal standard set forth in Mook

before applying that standard anew to the facts of the case.

¶ 39 The County contends that the BAA’s factual findings in BAA

Order I constitute the law of the case because they were “affirmed”

in Neuhoff I and that the purportedly inconsistent findings in BAA

Order II thus violate the mandate rule. This argument depends on

20

a premise that we have already rejected — namely, that the findings

in the two orders conflict. But even if we were to accept the

premise, the argument fails for several additional reasons.

¶ 40 To begin, the BAA’s findings were not affirmed. Neuhoff I —

which did not address the BAA’s findings as to wildlife viewing,

Neuhoff I, ¶ 23 n.3 — was vacated by the supreme court. Neuhoff II

declined to address any challenges to the BAA’s factual findings.

See Neuhoff II, ¶ 17. Thus, no appellate decision stands considering

— much less affirming — the factual findings in BAA Order I.

¶ 41 In any event, an appellate court’s affirmance of a lower

tribunal’s findings of fact does not “set those findings in stone.”

Owners Ins., ¶ 28. It simply means the findings were supported by

the record and not clearly erroneous. Id. There may also be record

support for a contrary finding. See Casserly v. State, 844 P.2d

1275, 1281 (Colo. App. 1992) (“A court’s findings based upon a

choice between two plausible views of the weight of the evidence or

upon a choice between conflicting inferences from the evidence is

not clearly erroneous.”). And in that case, absent something in the

appellate mandate to the contrary, the mandate rule does not

preclude a lower tribunal from changing its factual findings.

21

Owners Ins., ¶ 28. More to the point in this case, it does not

preclude the lower tribunal from considering how its prior factual

findings may be altered by a new legal standard. Id. at ¶ 27.

¶ 42 In arguing otherwise, the County relies on Hardesty v. Pino,

222 P.3d 336 (Colo. App. 2009). But Hardesty involved the

opposite situation, in which a division of this court had concluded

the evidence was insufficient to support the trial court’s finding. Id.

at 338. In the second appeal, the division concluded that a ruling

that the evidence was insufficient establishes the law of the case.

Id. at 341. But that is because a ruling of evidentiary insufficiency

means that the evidence cannot support a finding as a matter of

law. Id. In contrast, a ruling that the evidence is supported by the

record does not exclude the possibility of a contrary finding.

¶ 43 We therefore conclude that the factual findings in BAA Order II

did not violate the mandate in Neuhoff II.

D. Used as a Unit

¶ 44 The County’s final argument is that the BAA did not apply the

correct legal standard in determining that the subject parcels were

“used as a unit” in conjunction with the residential improvements.

22

It asserts that the BAA concluded that any alleged use satisfies the

Mook test without actually applying that test. We again disagree.

¶ 45 Mook establishes that the “used as a unit” requirement

consists of two basic principles: (1) the parcels must be used “as a

‘unit,’ i.e., as though they’re a greater, single parcel of land”; and

(2) the owner must use “that collective piece of property” in

conjunction with the residence. Mook, ¶ 65 (citation omitted). In

addition, the primary purpose of the parcel must be for “the

support, enjoyment, or other non-commercial activity of the

occupant of the residence,” as opposed to “non-residential property

uses.” Id. at ¶¶ 69, 72 (citation omitted). But the nature and

extent of the use are immaterial. Id. at ¶ 57. The use may consist

of any employment of the parcel, including to view nature. Id.

¶ 46 The BAA applied this legal standard. It correctly cited the two

controlling principles set forth in Mook, it quoted Mook’s definition

of “use,” and it correctly noted that “the use of the subject parcel

does not need to be active and could [include] employ[ing] the

subject parcel in accomplishing something, such as walking a dog

or viewing nature.” The BAA then applied this standard to the

facts, finding that (1) the subject parcels were used for viewing

23

nature and wildlife from the residence, and (2) that use established

the subject parcels were used as a unit with the residential parcel.

¶ 47 Contrary to the County’s argument, the BAA did not reach this

conclusion simply because a use was alleged. It found, with record

support, that the subject parcels were in fact used for that purpose.

See Gyurman v. Weld Cnty. Bd. of Equalization, 851 P.2d 307, 308,

310 (Colo. App. 1993) (holding that there was “ample support” for

BAA’s residential land classification where landowner testified that

he used property by “looking at the wildlife that was out there and

keeping people off of it”), cited with approval in Mook, ¶¶ 73-74.

¶ 48 The County asserts that the subject parcels do not satisfy the

Mook test because (1) the parcels are not used as a collective unit of

property; (2) the subject parcels are not used in conjunction with

the residential improvements; and (3) the primary purpose of the

subject parcels is not for the support, enjoyment, or other non-

commercial activity of the residents. For the most part, these

arguments simply reframe the County’s challenges to the BAA’s

factual findings. In essence, the County contends that the subject

parcels were not used as required because they were not used at

all. As we have explained above, the BAA found otherwise. And to

24

the extent the BAA made ostensibly contrary findings in BAA

Order I, it was applying a heightened standard of “use” and

considering other uses beyond nature and wildlife viewing.

¶ 49 The County’s remaining arguments concern the weight of the

evidence. For example, the County cites the appraiser’s testimony

that the subject parcels are separated from the residential parcel by

a line of trees and that the views from the residence would remain if

the subject parcels were developed. But even assuming these facts

are relevant after Mook (and it is not clear they are), we may not

reweigh the evidence and substitute our judgment for that of the

BAA. Sandra K. Morrison Tr., ¶ 9. Because the BAA’s property

classification has a reasonable basis in law and is supported by

substantial evidence, we may not disturb it. See O’Neil, ¶ 11.

III. Attorney Fees

¶ 50 The Partnership requests an award of appellate attorney fees

under section 13-17-102, C.R.S. 2023, asserting that the appeal

lacks substantial justification and was brought for the purpose of

delay. We deny that request. Although we have ruled against the

County, its arguments did not lack substantial justification. See In

re Marriage of Boettcher, 2018 COA 34, ¶ 38 (“Fees should be

25

awarded only in clear and unequivocal cases when the appellant

presents no rational argument, or the appeal is prosecuted for the

purpose of harassment or delay.”), aff’d, 2019 CO 81.

IV. Disposition

¶ 51 The order is affirmed.

JUDGE WELLING and JUDGE TAUBMAN concur.